Tenth Circuit: You Must Prove Bad Faith Before A Spoliation Jury Instruction

Earlier this month, the Tenth Circuit issued an opinion in Dalcour v. City of Lakewood. (PDF). As well as some Constitutional issues, the question of evidence spoliation came up. From the opinion:

During discovery, Plaintiffs repeatedly requested a printout of all the TASER logs from the date of the arrest, but the logs the city produced did not include any information related to the TASER use on [co-plaintiff] Avril. Plaintiffs alleged that the city’s failure to produce the relevant TASER log amounted to spoliation of evidence, entitling them to an adverse jury instruction that Avril was tased three times, or, in the alternative, a jury instruction that “the jury ‘may’ presume that the evidence was intentionally destroyed.”

The plaintiffs’ motion for an adverse jury instruction was denied in district court, although plaintiffs were allowed to question witnesses about the missing evidence. They appealed to the Tenth Circuit, which relied on a rule from Oldenkamp v. United American Insurance Co. (2010), which states: “For the [plaintiffs] to have the benefit of the type of jury instruction they requested, they must show that [the defendant] acted in bad faith.” Based on this, the Dalcour court held:

The record offers no indication of bad faith; at worst, it appears that the City may have been negligent, and it appears more likely that the records were lost due to a computer error. Certainly, the court’s finding that there was no bad faith does not rise to the level of clear error. Absent bad faith, the Plaintiffs were not entitled to an adverse jury instruction. Regardless, the court did grant Plaintiffs a sanction by allowing them to question witnesses about the missing evidence. Under our precedent, allowing the Plaintiffs to question witnesses about missing evidence is a lesser sanction, although the Plaintiffs do not appear to recognize it as such.

Having to prove bad faith is tough, so be careful in the Tenth Circuit when asking for adverse jury instructions.